# Jhandu v. The D.D.C Budaun & Ors

- **Citation:** (2014) 1 ILRA 115
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-12-03
- **Case number:** Civil Misc. Writ Petition No. 64232 of 2013
- **Bench:** Ram Surat Ram (Maurya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jhandu-v-the-d-d-c-budaun-ors-42886
- **Pages:** 4

## Headnote

U.P. Consolidation of Holding Act 1953Section-48(3)- Power of remand Deputy
director of consolidation-if not satisfied
with findings recorded by S.O.C.-argument
that ought to have remand for fresh
consideration-but can not disturb the
finding of facts recorded by S.O.C.-held-mis
conceived-in view of amended provision of
clause 3 of 48 of the Act-power to reappreciate oral or documentary evidence.

Held: Para-12
Settlement Officer Consolidation found
that marriage of Mohkam to Maya was
proved. But as Maya was not examined to
prove that Mithlesh Babu was her born due
to bedlock with Mohkam as such, the
matter was remanded for fresh trial.
Mithlesh Babu examined Satyapal and
Thakuri and filed his school record. On the
basis of these evidence, the Consolidation
Officer recorded findings that it was
proved that Mithlesh Babu was legitimate
son of Mohkam. In the circumstances, the
remand was wholly unnecessary and only
allowing the parties to fill up the lacuna in
their evidence. Respondent-1 has rightly
set aside the order of the appellate Court.
Finding of facts recorded by respondents-1
and 2 do not suffer from any illegality.

Case Law discussed:
2001(92) RD
79;
2003 (94) RD
614;
2003(106) RD 563; (2000) 3 SCC 103; (2009)
12 SCC 590; (2008) 8 SCC 485.

## Text

1 All] Jhandu Vs. The D.D.C Budaun & Ors.
115
imposes a cost of Rs.50,000/-. Rs.25,000/-
shall be paid to the petitioner within four
weeks from today and the remaining
Rs.25,000/- will be deposited by the District
Magistrate before the High Court Legal
Services Committee. It would be open to
the State Government to recover the amount
from the erring officials. If the amount is
not deposited, the Member Secretary will
approach the Registrar General, who in turn
will proceed to recover the amount as
arrears of land revenue.

11. The Registry is directed to supply a
copy of this order to the Member Secretary
within a week for necessary action.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2013

BEFORE
THE HON'BLE RAM SURAT RAM (MAURYA), J.

Civil Misc. Writ Petition No. 64232 of 2013

Jhandu... Petitioner
Versus
The D.D.C Budaun & Ors.... Respondents

Counsel for the Petitioner:
Sri R.S. Tripathi, Sri A.P. Tiwari

Counsel for the Respondents:
C.S.C.

U.P. Consolidation of Holding Act 1953Section-48(3)- Power of remand Deputy
director of consolidation-if not satisfied
with findings recorded by S.O.C.-argument
that ought to have remand for fresh
consideration-but can not disturb the
finding of facts recorded by S.O.C.-held-mis
conceived-in view of amended provision of
clause 3 of 48 of the Act-power to reappreciate oral or documentary evidence.

Held: Para-12
Settlement Officer Consolidation found
that marriage of Mohkam to Maya was
proved. But as Maya was not examined to
prove that Mithlesh Babu was her born due
to bedlock with Mohkam as such, the
matter was remanded for fresh trial.
Mithlesh Babu examined Satyapal and
Thakuri and filed his school record. On the
basis of these evidence, the Consolidation
Officer recorded findings that it was
proved that Mithlesh Babu was legitimate
son of Mohkam. In the circumstances, the
remand was wholly unnecessary and only
allowing the parties to fill up the lacuna in
their evidence. Respondent-1 has rightly
set aside the order of the appellate Court.
Finding of facts recorded by respondents-1
and 2 do not suffer from any illegality.

Case Law discussed:
2001(92) RD
79;
2003 (94) RD
614;
2003(106) RD 563; (2000) 3 SCC 103; (2009)
12 SCC 590; (2008) 8 SCC 485.

(Delivered by Hon'ble Ram Surat
Ram(Maurya), J.)

1. Heard Sri A.P. Tiwari, for the
petitioner.

2. The writ petition has been filed
against the orders of Deputy Director of
Consolidation
dated
09.10.2013
and
Consolidation Officer dated 03.05.2010,
passed in proceedings under Section 12 of
U.P. Consolidation of Holdings Act, 1953
(hereinafter referred to as the Act).

3. The dispute relates to the land of
chaks 320, 748 and 1177 of village
Kurhashahpur, pargana
Ujhani, district
Budaun. Chaks 320 and 748 were recorded,
in the name of Mohkam son of Nekram and
Chak 1177 was recorded in the name of
Sipattar. The petitioner filed an objection
(registered as Case no. 5 of 2009-10) under
Section 12 of the Act, for recording his name
as an heir of Mohkam and Sipattar, the
116 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded tenure holders. It has been stated by
the petitioner that Mohkam was his real
brother and Sipattar was his real uncle
(father's brother). Both of them died issue
less. The petitioner was their nearest heir
under Section 171 of U.P. Act no. 1 of 1951.
Thereafter, Mithlesh Babu (respondent-3)
also filed an objection under Section 12 of
the Act, for recording his name as an heir of
Mohkam. It has been stated by respondent-3
that he was son of Mohkam, born to his
legally wedded wife Smt. Maya. Sipattar
died during life time of Mohkam, as issue
less as such his share was jointly inherited by
Jhandu and Mohkam. After death of
Mohkam, he inherited his share. Both the
objections were referred to the Consolidation
Officer, where the parties filed written
statements of the claims of each other.
Subsequently one Objection was filed by
Smt. Gango, mother of Mohkam, stating that
Mohkam was unmarried and died issue less
as such his interest was inherited by her,
being his widowed mother.

4.

All
the
objections
were
consolidated
and
tried
together
by
Consolidation Officer (respondent-2). The
petitioner examined Jhandu, Basoran,
Rakshpal and Brijpal as witnesses.
Mithlesh
Babu
examined
himself,
Satyapal and Thakuri as his witnesses and
also filed documentary evidence. Gango
examined herself and Raveran as her
witnesses. The Consolidation Officer,
after hearing the parties, by order dated
03.05.2010, held that all the witnesses of
the petitioner admitted that Mohkam was
married to Smt. Maya. Even Gango
admitted that Maya was living with
Mohkam as his concubine. From the
Voters' List it was proved that Maya was
wife of Mohkam. Satyapal and Thakuri
proved that Mithlesh Babu was born to
Maya, who was wife of Mohkam. From
the school records and statement of the
witnesses it was proved that Mithlesh
Babu was son of Mohkam and Maya.
Thus it was found proved that Mithlesh
Babu was legitimate son of Mohkam as
such name of Mithlesh Babu was directed
to be recorded over the land in dispute as
an heir of Mohkam.

5. The petitioner filed an appeal
(registered as Appeal no. 197) from the
aforesaid order. Gango did not file any
appeal. The appeal was heard by
Settlement
Officer
Consolidation,
Badaun, who by order dated 09.02.2011
held that although marriage of Mohkam to
Maya was proved but as the school
records filed by Mithlesh Babu was not
proved by the competent authority and
Maya, who was the best witness to prove
that Mithlesh Babu was born to her during
her wedlock with Mohkam, but she was
not produced as such the Consolidation
Officer committed an error in recording a
finding that Mithlesh Babu was son of
Mohkam. On these findings, he allowed
the appeal and remanded the case to
Consolidation
Officer
for
giving
opportunity to the parties to lead fresh
evidence and decide afresh.

6. Mithlesh Babu filed a revision
(registered as Revision No.84/2013-14).
The revision was heard by Deputy
Director of Consolidation (respondent-1),
who by order dated 09.10.2013 held that
in the Voters' List of 1992, the name of
Maya was recorded as the wife of
Mohkam. In the school records, date of
birth of Mithlesh Babu was mentioned as
05.06.1994 and his father's name was
recorded as Mohkam and from the
statements of Satyapal and Thakuri also,
it was proved that Mithlesh Babu was son
of Mohkam. The Consolidation Officer
1 All] Jhandu Vs. The D.D.C Budaun & Ors.
117
gave full opportunity of evidence to the
parties and remand for fresh evidence was
illegal. On these findings, the revision
was allowed and the order of Settlement
Officer Consolidation, Badaun, dated
09.02.2011 was set aside and order of
Consolidation Officer dated 03.05.2010
was reinstated. Hence this writ petition
has been filed.

7. The counsel for the petitioner
submitted
that
Deputy
Director
of
Consolidation was exercising the revisional
jurisdiction. In case, he was not agreeing
with the findings of fact recorded by
Settlement Officer, Consolidation, he ought
to have remanded the case to Settlement
Officer Consolidation for deciding the appeal
afresh but he has exceeded his jurisdiction in
recording his own findings of facts contrary
to the appellate authority. He placed reliance
on the judgment of Supreme Court in
Gayadeen Vs. Hanuman Prasad, 2001 (92)
RD 79 and the judgments of this Court in
Wali Mohammad Vs. DDC and others, 2003
(94) RD 614 and Mst. Mahraji Vs. DDC and
others, 2009 (106) RD 563. Findings of
Deputy Director of Consolidation are based
upon misconstruing of the evidence on
record. It was not proved from any evidence
on record that Mithlesh Babu was the
legitimate son of Mohkam as such he was
not heir of Mohkam. The petitioner, being
the real brother of Mohkam, who died issue
less, was his heir. Respondent-1 has not
given any reason in his judgment and it is a
cryptic order and has been passed without
discussing any evidence on record.

8. I have considered the arguments of
the counsel for the petitioner and examined
the record. Section 48 (1) of the Act, which
confers revisional jurisdiction to Deputy
Director of Consolidation and Explanation
(3) added to it are quoted below:-

Section 48. Revision and Reference:-
(1)The Director of Consolidation may call
for and examine the record of any case
decided or proceedings taken by any
subordinate authority for the purposes of
satisfying himself as to the regularity of the
proceedings; or as to the correctness, legality
or propriety of any order other than
interlocutory order passed by such authority
in the case or proceedings, may after
allowing
the
parties
concerned
an
opportunity of being heard, make such order
in the case or proceedings as he thinks fit.

Explanation (3).- The power under this
section to examine the correctness, legality or
propriety of any order includes the power to
examine any finding, whether of fact or law,
recorded by any subordinate authority, and
also includes the power to re-appreciate any
oral or documentary evidence.

9. The scope of jurisdiction under
Section 48 of the Act came for consideration
before Supreme Court time to time. Supreme
Court in Sheo Nand v. Dy. Director of
Consolidation, (2000) 3 SCC 103 held that
section 48 gives very wide powers to the
Deputy Director. It enables him either suo
motu on his own motion or on the application
of any person to consider the propriety,
legality, regularity and correctness of all the
proceedings held under the Act and to pass
appropriate orders. These powers have been
conferred on the Deputy Director in the widest
terms so that the claims of the parties under
the Act may be effectively adjudicated upon
and determined so as to confer finality to the
rights of the parties and the revenue records
may be prepared accordingly. Normally, the
Deputy Director, in exercise of his powers, is
not expected to disturb the findings of fact
recorded concurrently by the Consolidation
Officer
and
the
Settlement
Officer
(Consolidation), but where the findings are
118 INDIAN LAW REPORTS ALLAHABAD SERIES
perverse, in the sense that they are not
supported by the evidence brought on record
by the parties or that they are against the
weight of evidence, it would be the duty of the
Deputy Director to scrutinize the whole case
again so as to determine the correctness,
legality or propriety of the orders passed by
the authorities subordinate to him. In a case,
like the present, where the entries in the
revenue records are fictitious or forged or they
were recorded in contravention of the
statutory provisions contained in the U.P.
Land Records Manual or other allied statutory
provisions, the Deputy Director would have
full power under Section 48 to reappraise or
re-evaluate the evidence-on-record so as to
finally determine the rights of the parties by
excluding forged and fictitious revenue entries
or entries not made in accordance with law.

10. Similar view has been taken by
Supreme Court in Sheshmani Vs. DDC
and others, 2000 (91) RD 210 and Gulzar
Vs. DDC and others, (2009) 12 SCC 590.
Due to some contradictory decisions,
Explanation (3) has been added by U.P.
Act No. 3 of 2002. Thus, the arguments
raised by the counsel for the petitioner
that in case of disagreement, Deputy
Director of Consolidation ought to have
remanded the case to Settlement Officer
Consolidation is not liable to be accepted.

11. The practice of remand has been
deprecated by Supreme Court time to time.
Supreme Court in Municipal Corpn.,
Hyderabad v. Sunder Singh, (2008) 8 SCC
485, held that it is now well settled that
before invoking the provision of Order 41
Rule 23 of the Code of Civil Procedure, the
conditions precedent laid down therein must
be satisfied. It is further well settled that the
court should loathe to exercise its power in
terms of Order 41 Rule 23 of the Code of
Civil Procedure and an order of remand
should not be passed routinely. It is not to be
exercised by the appellate court only because
it finds it difficult to deal with the entire
matter. If it does not agree with the decision
of the trial court, it has to come with a proper
finding of its own. The appellate court cannot
shirk its duties.

12. Settlement Officer Consolidation
found that marriage of Mohkam to Maya
was proved. But as Maya was not examined
to prove that Mithlesh Babu was her born
due to bedlock with Mohkam as such, the
matter was remanded for fresh trial. Mithlesh
Babu examined Satyapal and Thakuri and
filed his school record. On the basis of these
evidence, the Consolidation Officer recorded
findings that it was proved that Mithlesh
Babu was legitimate son of Mohkam. In the
circumstances, the remand was wholly
unnecessary and only allowing the parties to
fill up the lacuna in their evidence.
Respondent-1 has rightly set aside the order
of the appellate Court. Finding of facts
recorded by respondents-1 and 2 do not
suffer from any illegality.

13. In view of the aforesaid
discussion, the impugned orders do not
suffer from any illegality. The writ
petition has no merit and is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2013

BEFORE
THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE SUNEET KUMAR, J.

Civil Misc. Writ Petition No. 64481 of 2012

Praveen Kumar... Petitioner
Versus
State of U.P.... .Respondent

Counsel
for
the
Petitioner: